Published July, 2000

Herring v. Keenan, 218 F.3d 1171 (10th Cir. 2000)

A divided panel of the Tenth Circuit held that although there is a constitutional right to privacy that protects an individual from the disclosure of information concerning a person’s health, including that person’s HIV status, the right in the context of this case was not sufficiently clear in 1993 to defeat a government official’s defense of qualified immunity. In this case, plaintiff Herring’s probation officer improperly disclosed his HIV status to his sister and to his restaurant employer. Herring had voluntarily informed Keenan, his probation officer, that he had taken an HIV test and might be positive. Keenan immediately disclosed the information to Herring’s employer, believing that Colorado law prohibited a person who had tested positive for HIV from working in a food preparation position. Keenan was mistaken as to the law and also violated probation guidelines and state criminal law by disclosing Herring’s HIV status without his consent.

Although Herring’s constitutional right was violated, he had the burden of proving that the right was legally recognized to the extent that a reasonable official would understand that what he was doing violated a right. The court dismissed the claim and upheld Keenan’s qualified immunity defense because, the court concluded, at the time of the disclosures in 1993, a plaintiff’s constitutional right to privacy in that context was not clearly established. The court also found that officials do not lose their qualified immunity for a constitutional violation solely because their conduct violates a statutory or administrative provision.

In his dissent, Judge Seymour countered that the majority ignored and misapplied other applicable Tenth Circuit precedent that supports Herring’s claim, and that the defendant should not be allowed a qualified immunity defense because the plaintiff clearly enjoyed a constitutional protection of his medical information at the time of the disclosure, there was no legitimate government interest in the disclosure, and the disclosure was objectively unreasonable.

Although Herring lost his case, this decision is potentially helpful to advocates in confirming the right of a parolee to the confidentiality of her/his HIV status and the illegality of criminal justice officials revealing that status for the purpose of warning third parties, at least in the settings set forth in this case. The dissent also provides useful analysis of that right and the proper application of the qualified immunity defense that public officials often raise to avoid liability for wrongdoing.